USCIS begins accepting H-1B petitions for FY2017

On April 1, 2016, USCIS began accepting H-1B petitions for FY2017. In keeping with the trend of the last several years, USCIS confirmed it expects to receive more than the congressionally mandated cap of 85,000 petitions from employers within the first five business days of April (this year, April 1st - April 7th). The cap consists of 65,000 H-1B visas available for beneficiaries with at least bachelor's degree or equivalent and an additional 20,000 H-1B visas for beneficiaries with a U.S. master's degree or higher. After April 7th, the agency will use a computer-generated lottery system to randomly select the 85,000 petitions for adjudication. Last year USCIS received over 233,000 H-1B petitions in the first five business days of April. For updates on when USCIS reaches the cap, the lottery, start date for premium processing, and other H-1B related news, visit USCIS's H-1B FY2017 site and look for breaking news on our website's news and updates section.

DHS announced major changes for employers and F-1 students on STEM OPT

On March 11, 2016, the Department of Homeland Security ("DHS") published its new rule on STEM OPT. Previously, F-1 students who came to the U.S. and graduated with a degree in a STEM field were eligible for a 17 month extension to the existing one year of work authorization for their period of Optional Practical Training ("OPT"). As a result of litigation over the 2008 rule that authorized STEM OPT, DHS published a new rule that includes significant changes for employers, F-1 students, and Designated School Officials ("DSOs") at U.S. colleges and universities. The new regulations include a 24 month extension to OPT, a new requirement for a training plan signed by employers, a requirement employers report wages offered to F-1 students on STEM OPT, and provisions for the transition period between now and the rule taking effect on May 10, 2016 for students currently on STEM OPT. To read a detailed summary of the new rules, visit our firm's website and click the News and Updates tab.

USCIS adopts recent AAO decision affirming National Interest Waiver category includes medical specialists in addition to primary care physicians

In February the Administrative Appeals Office ("AAO") decided an important case for physicians applying for immigrant visas in the National Interest Waiver category, and on March 9, 2016 USCIS issued a Policy Memorandum officially adopting the AAO's decision as agency policy. In its decision in Matter of H-V-P, the AAO held that medical specialists who agree to practice in any area designated by the Secretary of Health and Human Services as having a shortage of health care professionals or in a VA facility may be eligible for the physician National Interest Waiver category of green cards. This expansion to include medical specialists is a major victory for American communities suffering from a shortage of qualified physicians and foreign-born medical specialists who with to remain in the U.S. If you have questions about whether physicians working for your organization may qualify for a green card in the National Interest Waiver category, please contact one of the attorneys at Iandoli Desai and Cronin at info@iandoli.com or by calling us at 617-482-1010.

USCIS transfers cases in an effort to address processing delays

Responding to the need to develop more streamlined processing of various applications and petitions and decrease processing times, USCIS announced a series of case transfers in March. As of March 28, 2016, the Potomac Service Center will process all I-765 Applications for Employment Authorization filed by F-1 and M-1 students seeking Optional Practical Training. All such applications will be marked with the prefix "YSC" to note that the application is at the Potomac Service Center.

The Vermont Service Center ("VSC") has begun to transfer some H-1B and H-4 cases to the Nebraska Service Center ("NSC"). Specifically, the VSC will transfer certain Form I-129 Petitions for Nonimmigrant Workers for petitioners requesting H-1B classification, Form I-539 Applications to Extend/Change status for H-4 classification, and Form I-765, Applications for Employment Authorization for H-4 eligible dependents. Petitioners should refer to the form instructions and the filing addresses listed on the USCIS website and, when applicable, continue to file petitions with the VSC. The VSC will then decide which cases to transfer to the NSC.  In cases where an I-129 is transferred to the NSC, any Form I-907 upgrade for premium processing should be sent to the NSC.

Similarly, USCIS may transfer certain L-1 and L-2 cases from the VSC to the California Service Center ("CSC"). The processes affected for L-1 and L-2 beneficiaries will include certain I-129, I-539 and I-765 applications. Petitioners should still refer to the form instructions and the filing addresses listed on the USCIS website and, when applicable, continue to file petitions with the VSC. In cases where an I-129 is transferred to the CSC, any form I-907 upgrade for premium processing should be sent to the CSC. For more details and to review the official press releases, please visit USCIS's website's News and Alerts section and click the links for the alerts from March 29, 2016.

USCIS updates FAQs on employment authorization for certain H-4 spouses

On March 10, 2016, USCIS updated its FAQ on employment authorization for certain H-4 spouses. Pursuant to new regulations that went into effect last May, an H-4 spouse whose H-1B spouse is the principal beneficiary of an approved I-140 Petition for Immigrant Worker or whose H-1B spouse has filed for an extension of status beyond the normal six-year limit in accordance with the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21") is now eligible to request employment authorization. In March, 2016, USCIS updated its FAQ on this topic to address several unique issues that arise for H-4 spouses seeking this employment authorization. 

This multi-page FAQ helps applicants determine if they are eligible to file, reviews the application process, explains the basis for adjudication of the applications, discusses the applicant's status while awaiting adjudication, and outlines what happens once employment authorization is received. In particular the FAQ confirms the H-4 spouse must be physically present in the U.S. to apply for employment authorization and additionally confirms that if the applicant's I-765 application is filed concurrently with an I-539 application to change status to H-4, the applicant must remain in the U.S. until the request to change status to H-4 is approved.  USICS will deny both the I-539 and I-765 application for employment authorization if the applicant travels abroad before the change of status is approved.  To read the full FAQ, please visit the USCIS website.

USCIS publishes chart on I-485 Adjustment of Status applications

On March 23, 2016, USCIS published a chart listing all I-485 applications received, approved, denied, and pending adjudication between October 1, 2015 and December 31, 2015. The chart breaks down I-485 applications into four main categories: family-based applications, employment-based applications, humanitarian-based applications, and other applications. On the employment-based side, the most striking figure is the number of cases still pending: 125,161. While there appears to be a slight uptick in processing times of late, the vast majority of I-485 applications continue to take between six and eight months for adjudication. 

Where these delays can cause considerable hardship to applicants with long-pending cases, we strongly urge all applicants with Employment Authorization Documents ("EADs") and/or advance parole issued based on a pending I-485 to track the expiration of those EAD/AP combo cards. When the EAD/AP combo card is due to expire within four months, applicants should immediately file for extensions of work and travel permission since USCIS may take up to 90 days to adjudicate the extensions. These extension requests do not require payment of additional filing fees, and the timing should be carefully considered in order to avoid interruptions in work authorization and cancellation of travel plans. For more information or to contact an attorney at Iandoli Desai & Cronin with questions about this process, please e-mail us at info@iandoli.com.

Naturalization application denied for unauthorized employment prior to gaining legal permanent residence

In a recent decision, the U.S. Circuit Court for the 8th Circuit denied an application for U.S. citizenship after determining the applicant had engaged in unauthorized employment while in the U.S. pursuant to a non-immigrant, R-1 visa. The applicant in this case began working for an employer more than six months prior to the date that he was authorized by USCIS to do so, making him ineligible to apply for adjustment of status. This period of unauthorized employment was not known to USCIS at the time the agency approved his green card, but came to light when he listed his employers and dates of employment on his application for U.S. citizenship. As this unauthorized employment would have caused the applicant's green card application to be denied, the USCIS adjudicator conducting the naturalization interview determined that the legal permanent resident status should never have been granted in the first place and therefore denied the naturalization application.  Both a U.S. District Court and the U.S. Circuit Court for the 8th Circuit upheld USCIS's denial. 

This outcome is a warning to any foreign nationals who believe receiving a green card ends any possibility of further scrutiny into their employment and immigration history.  This case also highlights the importance of applicants ensuring any and all work undertaken in the U.S. prior to receiving a green card is specifically authorized. If you have questions regarding employment authorization or whether it could impact a green card or naturalization application, you should contact one of our immigration attorneys at info@iandoli.com or by calling us at 617-482-1010 before applying.

Breaking News: Major Changes for Employers & F-1 Students on STEM OPT

In the March 11, 2016 Federal Register, the Department of Homeland Security published its new rule entitled "Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students."  A full copy of the rule, effective May 10, 2016, can be found on the Federal Register's website. Not only are there major changes for F-1 students, but there are also significant new requirements for employers of F-1 students on STEM OPT and Designated School Officials (“DSO”s) at colleges and universities F-1 students attend.  

BACKGROUND INFORMATION

International students who come to the U.S. on F-1 visas to study at colleges and universities can participate in optional practical training (“OPT”), providing eligible students with one year of work authorization in the U.S. after completing their degrees, so long as their work is directly related to their fields of study. Under DHS’s 2008 regulations, students who completed a degree in science, technology, engineering or mathematics (“STEM”) were eligible for a 17-month extension to their OPT (referred to as STEM OPT), provided the employment was still related to their field of study and required all employers of F-1 students on STEM OPT to enroll in E-Verify.

In response to a lawsuit filed in 2015 that alleged DHS’s 2008 regulations violated the notice and comment provisions of the Administrative Procedures Act, DHS revised its STEM OPT regulations and published a new proposed rule on October 19, 2015. DHS received over 50,000 comments to its new rule. Due to the ongoing litigation concerning the 2008 regulations, DHS requested the federal district court hearing that case to allow the 2008 regulations to remain in place until May 10, 2016.  The federal district court granted DHS’s request and on Friday, March 11, 2016, DHS published its new final rule on STEM OPT in the Federal Register, scheduled to take effect May 10, 2016.

DHS’s new rules include many important changes for students, employers, and DSOs.  The regulations also address the transitional period for F-1 students currently on STEM OPT or who have recently applied for their STEM OPT and clarify travel provisions during cap-gap. Several major highlights of the new rules include:

FOR F-1 STUDENTS

• F-1 students who graduate from an accredited U.S. college or university with a STEM degree are now eligible for a 24 month extension to their OPT, provided the student and their employer take certain necessary actions.
• This rule opens up STEM OPT for F-1 students twice in their academic career in the U.S. Previously, a student could only seek one lifetime STEM extension to OPT, regardless of whether the student earned two STEM degrees (example, bachelors in engineering and then a masters in engineering, or a masters and then a Ph.D.). Now students will be eligible for 1 year of regular OPT after each degree level, plus 24 months of STEM OPT for each qualifying STEM degree, with a maximum of two STEM OPT extensions. 
• F-1 students can seek this extension based on their most recent degree or a previously earned STEM degree, provided that degree was earned within the past 10 years at a qualifying, accredited U.S. college or university. For example, if an F-1 student earned her bachelor's in engineering and then pursued an MBA, that student can seek a STEM extension to her OPT after completing her MBA, so long as the offered employment relates to the STEM degree. 
• The new rule increases the limits on unemployment during the STEM OPT period. During OPT a student is allowed a maximum of 90 days of unemployment and under the previous rule the STEM extension added 30 days of unemployment for a maximum of 120 days of unemployment. Under the new rule, the STEM extension adds 60 days for a total unemployment period of 150 days over the aggregate 3 years of OPT and STEM extension. 
• The rules update the degrees that qualify for STEM extension. The updated STEM Designated Degree Program List is available on U.S. Immigration and Customs Enforcement's webpage.
• In light of the required training program with employers, discussed below, self-employment is no longer permitted during STEM OPT. F-1 students must work a minimum of 20 hours per week with their STEM OPT employers. Students can still work for multiple employers but the employment at each job must meet the STEM OPT requirements, including the 20 hours per week minimum and training plans. Volunteering is also not permitted for satisfying the 20 hour per week minimum under STEM OPT.
• In order for a school's DSO to authorize a student for a STEM OPT extension, the student must provide the DSO with a formal training plan on Form I-983, signed by the employer and the student. The DSO can then authorize the period of STEM OPT on the student's Form I-20, which the student will need for filing his or her application for extending employment authorization with USCIS.

FOR EMPLOYERS OF F-1 STUDENTS ON STEM OPT

• E-Verify enrollment is still required for all employers who seek to hire F-1 students on STEM OPT.
• The new rule includes reporting and training requirements that students and their employers must undertake.  Most notably, a student must draft and an employer must sign a formal training plan on new Form I-983. The final form I-983 is now available on the Department of Homeland Security's Study in the States website.  
• The training plan will describe the training the student employee can expect to receive, how the training goals will be achieved, describe a performance evaluation process, disclose the wage the employee will be paid, and include several required attestations the employer must make, notably: 
• The employer has the resources and personnel to provide the F-1 student with the appropriate training; 
• The student employee will not replace a full or part-time, temporary or permanent U.S. worker; and, 
• The compensation to the student employee is commensurate to that provided to similarly situated U.S. workers, and if the employer does not employ or has not recently employed at least two other U.S. workers performing similar duties, the employer is obligated to obtain information about other employers offering similar employment in the same geographic area. 
• To remain in compliance for work authorization, the F-1 student employee is required to submit to his or her school's DSO a self-evaluation of progress towards the training goals 12 months into the employment and at the conclusion of the 24 months of OPT STEM employment, countersigned by the employer.
• The employer is required to report to the school's DSO a student's termination or departure of an OPT student within five business days if the termination or departure occurs prior to the end of the authorized period of OPT. Employers shall consider a student to have departed when the employer knows the student has left the practical training opportunity or has not reported to work for a period of five consecutive business days without the consent of the employer.
• To ensure compliance with all the details contained in the training plan, DHS may conduct site visits to employers upon providing 48 hours notice. If DHS receives any complaints or suspects non-compliance, it may conduct site visits without notice. 

 TRANSITIONAL PROVISIONS

• USCIS will begin accepting 24 month STEM OPT employment authorization applications (Form I-765) on May 10, 2016.
• Any F-1 student who has applied for STEM OPT and whose I-765 application is still pending as of May 10, 2016 will receive a Request for Evidence ("RFE") from USCIS providing the student the opportunity to amend his or her 17 month STEM request to the full 24 month STEM period without having to pay a new application fee.
• An F-1 student who receives this RFE who wishes to take advantage of the additional 7 months of STEM OPT must obtain a new I-20, endorsed on or after May 10, 2016, which will require the student to provide his or her DSO with a training plan on Form I-983, signed by the student's employer.
• A student who presently has a valid 17 month extension of STEM OPT has a limited window in which to timely file for a 7 month extension to obtain the benefit of the full 24 months of STEM OPT.  F-1 students who fall into this category must provide their DSO with a training program, obtain a new I-20 dated on or after May 10, 2016, must file on or before August 8, 2016 (90 days after this rule goes into effect) and at the time of filing the I-765 students must have at least 150 days left in their current 17 month STEM OPT period.

We expect USCIS will be providing additional guidance over the coming weeks to advise on a number of the changes in the new rule. Please check our website at www.iandoli.com/newsandupdates for the latest changes to the STEM OPT rules and any other immigration-related news

H-1B filing deadline - Act Now!

The Fiscal Year 2017 H-1B visa filing deadline is fast approaching. Given the annual high demand for H-1B visas, H-1B petitions must be filed during the first five business days of April: Friday, April 1, 2016 through Thursday, April 7, 2016. If you are considering filing an H-1B on behalf of a valued employee, we urge you to contact us now to review the requirements of the H-1B program, discuss the timing for drafting the FY2017 H-1B petitions, and to strategize about other possible options for employment-based visas for recent graduates and professionals. 

Please contact us at info@iandoli.com or call us at 617-482-1010 with questions about H-1B visas and the application process.

DHS set to publish new, final rule on OPT STEM this month

Last month we brought you news about the January 23, 2016 order from the U.S. District Court for the District of Columbia that allowed the Department of Homeland Security's ("DHS") 2008 regulations on Optional Practical Training ("OPT") and the available 17-month STEM extension to remain in effect through May 10, 2016. 

On February 5, 2016, DHS sent its final STEM OPT rule to the Office of Management and Budget ("OMB") for review before publication in the Federal Register. We expect the final rule to be published in the Federal Register this month in order for DHS to accommodate the May 10, 2016 vacatur date of the current rule (if the new rule is to be effective 60 days after publication). This new, final rule will include a number of important changes to the STEM OPT program. To review DHS's proposed (not final) regulations, click here.  To review our firm's re-cap of the ongoing litigation and view a copy of the most recent order, click here.

The attorneys of Iandoli, Desai & Cronin P.C. will continue to post updates on this important news at www.iandoli.com/newsandupdates. You can contact us at info@iandoli.com with your questions about STEM OPT, the proposed regulations, and any other immigration related questions.